The Wise Report
February 17, 2013
Henry M. Wise, P.G.
The Texas Commission on Environmental Quality (TCEQ) proposes new §336.227 to establish an exemption from the TCEQ low-level radioactive waste (LLRW) licensing requirements for the disposal of certain radioactive tracers used in the exploration, development or production of oil and gas resources. On October 8, 2012, the executive director received a Petition for Rulemaking request from Baker Botts L.L.P., on behalf of ProTechnics Division of Core Laboratories LP. ProTechnics provides oil and gas diagnostic services to well operators to optimize reservoir performance and maximize hydrocarbon recovery from producing fields. These services include the use of radioactive tracers that are introduced into hydraulic fracturing fluids that enable well operators to take well log measurements to identify the intervals where the fluids are placed. ProTechnic's petition requested that the TCEQ establish an exemption in rule for the disposal of the radioactive tracers used in the hydraulic fracturing operations. After considering the petition on December 5, 2012, the commission directed the executive director to initiate this rulemaking.
Occasionally, the fracking fluids and tracer material can be released back out of the well during a "sandout" and is returned to the surface. The Texas Department of State Health Services (DSHS) and the Railroad Commission of Texas (RRC) have authorized the disposal of the returned material in earthen pits at the well site or in a Class II injection well. The DSHS granted this exemption under Texas Health and Safety Code (THSC), §401.106(a) through the radioactive material license issued by DSHS to authorize the use of radioactive tracers for disposal in the earthen pits and in 25 TAC §289.253(u)(3) for disposal in a Class II injection well. Both of these exemptions have also been granted on the radioactive material licenses issued by the Nuclear Regulatory Commission (NRC). In 2007, Senate Bill 1604 of the 80th Legislature conferred TCEQ with the authority to exempt a source of radiation from the licensing requirements under the TCEQ's jurisdiction. Because the commission has jurisdiction over the disposal of radioactive substances in THSC, §401.011(b)(1), the authority to exempt radioactive substances from disposal requirements in THSC, §401.106(a) rests with the commission.
An analysis by DSHS and the NRC determined that the disposal of the radioactive tracers would not result in a significant risk to public health and safety or to the environment. The radioactive tracers have a half-life of less than 120 days and are in a form that will not leach into and migrate with the groundwater. The on-site disposal pits must be covered with at least two feet of clean soil. The TCEQ has reviewed various pit disposal dose models, including worst-case-scenarios, that show that the total effective dose equivalent to individual members of the public from the closed pit is well below the 0.1 rem per year dose limit. Class II injection wells are permitted by the RRC after a determination that groundwater and surface water are protected from pollution. According to the petition, the disposal of radioactive tracers in earthen pits has occurred without any reported or known harm to public health and safety or the environment since May 12, 1992. The TCEQ agrees with the determinations of both the DSHS and the NRC and finds that the proposed exemption for the on-site pit disposal and Class II injection well disposal of the tracers will not constitute a significant risk to the public health and safety and the environment. For more information go to: http://www.sos.state.tx.us/texreg/sos/PROPOSED/30.ENVIRONMENTAL%20QUALITY.html#100
The following bills that may be of interest to Texas geologists have been filed. New information is listed in bold (one new bill listed):
HB 86, by Callegari, Relating to the criteria for review by the Sunset Advisory Commission of an agency that licenses an occupation. "A member of the legislature may submit proposed legislation that would create an occupational licensing program or significantly affect an existing occupational licensing program to the commission for review and analysis." This bill opens the door to more attacks on the TBPG, among other Boards. 2/5/2013, referred to Government Efficiency & Reform. For more information go to:http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 87, by Callegari, Relating to regulation of an individual's occupation. "An individual may engage in an occupation not prohibited by law without being subject to a state agency rule, policy, or practice that regulates the occupation if the rule, policy, or practice is:
(1) substantially burdensome; and
(2) unnecessary to fulfill the purpose and intent of the statute authorizing the regulation of the occupation.
(b) A state agency rule, policy, or practice may substantially burden an individual's right to engage in an occupation only if the agency demonstrates that the rule, policy, or practice is necessary to fulfill the purpose and intent of the statute authorizing the regulation of the occupation. “
This bill also opens the door to more attacks on the TBPG, among other Boards. 2/5/2013, referred to Government Efficiency & Reform. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 100, by Taylor, Van, Identical to SB 136, Relating to unit operations for oil, gas, or oil and gas production or carbon dioxide storage. Filed 11/29/2012.For more information go to:http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 147, by Burkett, Duplicate to HB 426, very similar to SB 467, Relating to the regulatory analysis of rules proposed by the Texas Commission on Environmental Quality. "Before adopting an environmental rule, the commission shall conduct a regulatory analysis that weighs the costs and environmental effects expected to result from implementation of and compliance with the rule." 2/6/2013, referred to Environmental Regulation. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 340, by Rodriguez, Eddie, Relating to the power of the Texas Commission on Environmental Quality to authorize certain injection wells that transect or terminate in the Edwards Aquifer. Allows injection wells that transect or terminate in that portion of the Edwards Aquifer inside the boundaries of Barton Springs Edwards Aquifer Conservation District. 2/11/2013, referred to Natural Resources. For more information go to:http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 426, by Creighton, Duplicate to HB 147, very similar to SB 467, Relating to the regulatory analysis of rules proposed by the Texas Commission on Environmental Quality. "Before adopting an environmental rule, the commission shall conduct a regulatory analysis that weighs the costs and environmental effects expected to result from implementation of and compliance with the rule." 2/11/2013, referred to Environmental Regulation. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=426
HB 569, by White, Relating to a study on the stringency of state environmental standards. The TCEQ will conduct a study of state environmental statutes and agency rules and assure that they aren't more stringent than Federal requirements. 2/14/2013, referred to Environmental Regulation. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 677, by Geren, Relating to the regulation and enforcement of dam safety by the Texas Commission on Environmental Quality. Exempts small dams located on private property from meeting requirements related to dam safety. Filed 1/24/2013. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 788, by Smith, Relating to regulation of greenhouse gas emissions by the Texas Commission on Environmental Quality. The TCEQ will adopt a program for the permitting of greenhouse gases and the program shall remain in effect until it's been determined that greenhouse gas emissions are no longer required to be regulated under federal law, on the effective date of the determination. Filed 1/29/2013. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=...
HB 824, by Callegari, Relating to a volume-based exemption from reporting requirements for accidental discharges or spills from wastewater facilities. It's not necessary to notify the TCEQ of an accidental discharge or spill of 1,500 gallons or less from a wastewater treatment facility or works. Filed 1/30/2013. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=....
HB 878, by Crownover, Relating to the filing with the state of well logs by operators of oil-related or gas-related wells; providing a penalty. Well logs are to be filed electronically. Filed 1/31/2013. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=....
HB 1079, by Smith, Identical to SB 434. Relating to the procedural requirements for action by the Texas Commission on Environmental Quality on applications for production area authorizations. Filed 2/7/2013. For more information go to:http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=....
SB 136, by Ellis, Identical to HB 100. Relating to unit operations for oil, gas, or oil and gas production or carbon dioxide storage. 1/29/2013, referred to Natural Resources. For more information go to:http://www.capitol.state.tx.us/BillLookup/history.aspx?LegSess=83R&Bill=...
SB138, by Zaffirini, Relating to procedures for filing complaints with, and providing notice of certain violations to, the Texas Board of Professional Geoscientists. This bill is designed to foster cooperation between agencies. As of now, the PG Board can only discover violations if a public complaint is made or the Board finds it themselves. This bill would require other agencies, such as the TCEQ to report violations to the PG Board when they find them. This has not been happening. 2/5/2013 Committee report printed and distributed. For more information go to:http://www.capitol.state.tx.us/BillLookup/history.aspx?LegSess=83R&Bill=...
SB 272, by Seliger, Relating to water well recordkeeping and reporting requirements, including the production, use, and withdrawal of groundwater. Scheduled for public hearing on 2/19/2013. For more information go to: http://www.capitol.state.tx.us/BillLookup/history.aspx?LegSess=83R&Bill=....
SB 434, by Smith, Identical to HB 1079. Relating to the procedural requirements for action by the Texas Commission on Environmental Quality on applications for production area authorizations. 2/13/2013, referred to Natural Resources. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=....
SB 467, by Hegar. Very similar to HB 147 and HB 426. Relating to the regulatory analysis of rules proposed by the Texas Commission on Environmental Quality. 2/13/2013, referred to Natural Resources. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=....
SB 536, by Hinojosa. 2/13/2013, referred to Natural Resources, Relating to regulation of greenhouse gas emissions by the Texas Commission on Environmental Quality. Before adopting an environmental rule, the commission shall conduct a regulatory analysis that weighs the costs and environmental effects expected to result from implementation of and compliance with the rule. For more information go to: http://www.capitol.state.tx.us/BillLookup/History.aspx?LegSess=83R&Bill=....
SB 584, by Hegar. Filed 2/14/2013, Relating to a volume-based exemption from reporting requirements for accidental discharges or spills from wastewater facilities. Reportable sewage spills from a wastewater treatment facility are greater than 1,500 gallons.
I'll be updating this list in the future, throughout the legislative session.
Henry M. Wise, P.G.
The Wise Report
February 17, 2013